There were loud cheers, ululation and sighs of relief in the courtroom of the Extraordinary African Chambers (EAC) in Senegal on Monday 30 May after Burkinabe judge, Gberdao Gustave Kam, convicted former Chadian president Hissène Habré and sentenced him to life imprisonment. The decision, which comes 26 years after Habré fled his native Chad, was, without a doubt a long time coming.
For most of the past three decades, victims’ rights groups have been pushing for Habré’s prosecution. Chadian civil society, legal representatives and supporters of accountability never lost hope and worked to make sure Habré was brought before a court. His trial only began in July 2015 and ended on 11 February 2016. Some 93 witnesses were called to testify.
With victims pushing so hard for the trial, critics have lamented whether there was ever a presumption of innocence in this case. This is particularly so given that in 1992, the commission of inquiry into the crimes and misappropriations committed by ex-president Habré, his accomplices and/or accessories had found that Habré committed serious crimes during his tenure.
Specifically, the commission found that under his leadership, Habré’s government had committed up to 40 000 political murders and tortured many Chadians. Furthermore, a court in Chad had found him guilty and sentenced him in absentia. Nevertheless, in handing down its decision, the EAC was clear that it relied solely on evidence presented before it.
The significance of this case cannot be understated. This is the first time a court in an African country has prosecuted and convicted the former president of another African country. Second, while the EAC is a Senegalese court, it is international in nature and the first ‘regional’ court supported by the African Union and a regional economic community (the Economic Community of West African States, in this instance). The court, while hosted in Senegal, was led by a judge president from Burkina Faso.
Third, and indeed the most important feature of the trial, is that it happened on the insistence of victims seeking justice and closure. These victims were also an independent party to the proceedings. Meanwhile, the same group of victims filed complaints in Chad against agents who worked for Habré’s Direction de la Documentation et de la Sécurité (DDS), a covert security agency known for violence and gross human rights violations.
On 25 March 2015, 20 of these agents were convicted in Chad on charges of murder, torture, kidnapping and arbitrary detention. In addition to sentencing the DDS agents, the court also ordered that the 7 000 victims ought to receive 75 billion Central African francs (US$127 million) in reparations. The Chadian government was ordered to pay half of this, and the other half by those convicted.
In addition, in an unprecedented symbolic gesture, the court ordered that the government should erect a monument to commemorate those who died during Habré’s rule and to convert what used to be the DDS headquarters into a museum. A year on, neither the monument nor the museum has materialised.
Habré was implicated in the Chadian trial too. His conviction in Senegal was thus, in effect, a foregone conclusion. Yet people waited with bated breath to hear his fate – a year after his DDS agents were convicted.
Habré – a Cold War ally of the United States – was charged with crimes against humanity (including torture), war crimes and other human rights violations. The court found that at the time the crimes were committed there was no armed conflict in Chad, so he wasn’t convicted of war crimes. However, the court spared no words in convicting Habré on his other charges.
Significantly, in vindicating the victims who continue to suffer 30 years on, the judge described the ‘environment of impunity’ created by Habré during his eight-year presidency. This also served as aggravating circumstances, which led to the judge imposing a life sentence.
Habré was found guilty of murder, torture, rape and sexual slavery. Notably, the court found that he orchestrated the killing and torture of tens of thousands of political prisoners. After the judges recharacterised the facts around the sexual violence charges, Habré was also found guilty of committing rape, making him the first former head of state to be convicted of personally raping. The woman he raped, Khadidja Hassan Zidane, was in the audience and smiled as the court sentenced Habré to life in prison. During the trial, she gave a heart-wrenching account of the sexual violence perpetrated at DDS detention facilities, including the four times that Habré had raped her. Closure at last.
When Habré fled Chad in 1990, it is believed that he took 3.5 billion Central African francs from state coffers. It was this money that allowed him to live in luxury in Dakar for over two decades. Should the judge order reparations to victims of his crimes in accordance with Article 27 of the EAC statute, it would be significant if all compensation came directly from funds seized from Habré. Judge Kam has already indicated that there will be a second set of hearings on damages following the conviction.
ISS senior researcher, Jemima Njeri Kariri, who attended the court session in Dakar on 30 May underscored the significance of this decision in international criminal justice. She noted that ‘this development demonstrates that with political will and support, indeed perpetrators of gross crimes can face justice on the continent.’ However, questions remain as to whether this model – delayed justice, at best – will be the future model of justice in Africa. This is unlikely.
For starters, it should not take this long for trials to commence. Justice delayed is often seen as justice denied. However, the way in which survivors – led by counsel for victims, Jacqueline Moudeïna (a victim of the Habré government herself) – celebrated Habré’s conviction shows that once justice is served, there is always cause for celebration.
The long wait aside, the trial was costly. At €8.6million for this trial alone, it would be a huge financial burden for states if all future trials required this much capital. Other international and hybrid courts that dealt with several cases over a longer period, like the International Criminal Tribunal for Rwanda and the Special Court for Sierra Leone were also expensive, requiring much larger budgets.
Ideally, justice should not be so expensive. African countries ought to explore options for justice that do not put a heavy strain on resources. Domestic prosecutions are a good start. Countries like Côte d’Ivoire, the Democratic Republic of Congo and Uganda are doing just that.
Last, setting up a court with a particular accused in mind will always be contested. As pointed out, the criticism that the accused was not fully afforded the right to be presumed innocent will be raised. However, unlike allegations of ‘victors’ justice,’ this case was one of victims’ justice.
Without a doubt the most prominent feature of the Habré case is the role played by the victims. The long, drawn-out process to bring Habré to justice demonstrated the tenacity and determination of victims in the face of great resistance. But should victims be the ones championing the cases against their perpetrators?
After suffering at the hands of others, victims should not have to carry the added burden of pushing for prosecution. Yet in the Habré case, were it not for victims’ refusal to give up, little (if anything) would have been done. If anyone must claim victory in this case, it is them: the victims; the survivors.
The criminal justice system ought to do better.
Written by Ottilia Anna Maunganidze, Senior Researcher, Office of the Executive Director, ISS